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HomeMy WebLinkAboutContract 35838-A1C:ITi( ���RET'AR't( �O �T h1C�.,� .�5��� � AGREEMENT TO AUGMENT A PUBLIC ARTWORK BETWEEN THE CITY OF FORT WORTH AND PHENOMENARTS, INC. i-e�f�.��r` This Agreement entered into this,�f day of���a� 2�11, (the "Effective Date") by and between the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas ("City"), acting by and through Fernando Costa, its duly authorized Assistant City Manager, and PHENOMENARTS, ING ("Artist"), located at 75 Kendall Road, Lexington, MA 02321, USA. Artist shall act through Christopher Janney, its duly authorized President. City has designated the ARTS COLJNCIL OF FORT WORTH & TARRANT COLTNTY, Inc. ("Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall act through Martha Peters, its designated Public Art Director. WHEREAS, on September 27, 2007, the City and PhenomenArts, Inc., ("Ar-tist") entered into City Secretary Contract No. 35838 (the "Original Contract") as authorized by City Council (M&C G22412) on September 25, 2007, and City designated the Arts Council of Fort Worth and Tarrant County, Inc., as its Contract Manager; WHEREAS, under the Original Contract, Artist composed and installed an interactive soundscore entitled, Sound Environnaents of Fo�t Wof�th, as part of a large public artwork in the Fort Worth Convention Center Parking Garage located at 1200 Houston Street, Fort Woi�th, Texas 76102 (the "Site") entitled, Parking in Color; WHEREAS, Artist has proposed to develop and implement a series of football-related sounds to integrate into the existing soundscore at the Site to commemorate Fort Worth's hosting of the American Football Conference champion (the "AFC Champion") for Super Bowl XLVTM (the "New Work"), which will take place on February 6, 2011, at Cowboys Stadium; WHEREAS, Artist will install the New Work on or before February 3, 2011; and WHEREAS, City and Artist wish to set out the terms and conditions under which the New Work shall be composed and installed in order to promote the integrity of Artist's ideas and statements as represented by the New Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreement hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: �F�I��AL R�C��D CIYY SECRE'�ARY �'. ����'a:�, ��,�; Paue 1 ARTICLE 1 SCOPE OF SERVICES 1.1 General Execution Deliverv and Installation Final Acceptance a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary to compose, install, and integrate the New Work into the existing soundscore entitled, Sound Envir�onments of Fof•t Worth. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall incoiporate a message from Mayar Mike Moncrief provided by City. c. Ai-tist shall incorporate football sounds. If Artist includes any sounds and/or marks from the AFC Champion team to be hosted by Fort Worth for Super Bowl XLVTM. Artist shall only do so after obtaining any and all necessary licenses and permissions from the copyright owners, including, but not limited to, the National Football League (the "NFL"), the AFC Champion, and/or any broadcasting coiporation or organization. Such licenses and/or peimissions must be entered into writing and presented to City before presentation or installation of the New Work. d. City shall not be responsible for any costs associated with any permissions and/or licenses from any source whatsoever, including, but not limited to, the costs associated with obtaining permissions and/or licenses and any and all royalties associated with the copyrighted works. Artist assumes any and all responsibility for paying royalties that are associated with the copyrighted works within the New Work. e. Artist shall ensure that all licenses and/or permissions from any copyright owners are transferrable to City only. f. Artist shall notify City, in writing, through its Contract Manager, when composition of the New Work is complete and ready for delivery and installation at the Site. g. Artist must present the New Work to City or Contract Manager for approval before installing and/or integrating the New Work at the Site. City may require Artist to make such revisions to the New Work as are necessary for the New Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. Page 2 of 24 h. City may also require Artist to make such revisions to the New Work as City deems necessary in its sole discretion. i. If resubmitted materials are not approved by City or Artist does not resubmit new material by the date specified for installation in this Agreement, then this Agreement may be terminated at City's option, with payment for work completed per the payment schedule in Article 2. j. Artist shall travel to Fort Worth and install the New Work no later than Thursday, February 3, 2011, on a date and time mutually agreed upon by City and Artist. k. Artist shall notify Contract Manager, in writing, when installation of the New Work is complete. Included in such notice from Artist shall be an affidavit certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid, which is attached hereto as Exhibit "A." 1. City shall notify Artist, in writing, of its final acceptance ("Final Acceptance") of the New Work. Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notification of Final Acceptance; or, (2) the lOth day after Artist has sent the written notice to City required under Section 1.1(i), unless City, upon receipt of such notice and prior to the expiration of the 10-day period, gives Artist written notice specifying and describing the services that have not been completed. m. Upon Final Acceptance, Artist shall transfer all licenses and/or permissions of any copyright owners to City. Artist shall not retain any rights to any copyrighted material and/or sound excerpts, all rights being transferred solely to City. 1.2. Risk of Loss The risk of loss or damage to the New Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance; except that the risk of loss or damage shall be borne by City or its agents prior to Final Acceptance during such periods of time as the partially or wholly completed New Work is in the custody, control, or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the New Work. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1 Fee. Page 3 of 24 a. City shall pay Artist a fee of THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) (the "Fee"), which shall constitute full compensation for all services and materials as outlined in this Agreement. The services and materials are to be performed and furnished by Artist under this Agreement, inclusive of fabrication, transportation, installation, insurance, incidental costs, Artist's fees, and all travel expenses. (a) Two Thousand Dollars and No Cents ($2,000.00) upon full execution of this Agreement. (b) One Thousand Dollars and No Cents ($1,000.00) upon completion of the installation by February 3, 2011 and Final Acceptance by City. 2.2. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate" in substantially the same form as that attached hereto as Exhibit "B" for use by Ai�tist in the fulfillment of this Agreement. 2.3. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1 Term. This Agreement shall be in effect from the Effective Date, and unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City, whichever is later. 3.2 Duration The services to be required of Artist set forth in Article 1 shall be completed on or before February 3, 2011; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. 3.3. Early Completion of Artist Services Page 4 of 24 Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided for completion of this project. 3.4. Time Extensions; Force Majeure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely perfor•mance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 4 WARRANTIES 4.1. Warranties of Title. Artist represents and warrants that: a. the New Work shall be the original product of Ai�tist's sole creative efforts; b. the New Work is and will be unique and original, except to the extent that it may incorporate by permission certain limited segments of sound owned by the a copyright holder, including, but not limited to, the AFC Champion, NFL, and/or any broadcasting coiporation or organization, and does not infringe upon any copyright or the rights of any person; c. the New Work (or duplicate thereo� has not been accepted for sale elsewhere; d. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the New Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; e. Artist shall not transfer any licenses and/oi• permissions to any other organization or person; f. the New Work is free and clear of any liens from any source whatsoever; g. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; h. Artist has acquired all necessary warranties and permissions; Page 5 of 24 i. all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence; and j. Artist shall assume the defense of, and INDEMNIFY AND HOLD HARMLESS, CITY, ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND ROYALTIES, TO WHICH IT MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE NEW WORK BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. THIS SECTION 4.1(j) SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. 4 2 Warranties of Quality and Condition a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for one year after the date of Final Acceptance. b. Artist represents and wat-rants that the New Work and the materials used are not currently known to be harmful to public health and safety. c. Artist also represents and wanants that the New Work will function, wark, and/or play properly for one year after the date of Final Acceptance. d. If, on or before February 6, 2011, City obseives any breach of warranty described in this Section 4.2 that is curable by Artist, Artist shall, at the request of City, cure the breach within twenty-four (24) hours after City gives Artist notice of such breach, at no expense to City. If Artist does not cure the breach within twenty-four (24) hours, then Artist is responsible for reimbursing City for any and all damages, expenses, and losses incurred by City as a result of the breach. e. If, after February 6, 2011, but within one year from the date of Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is curable by Ai-tist, Artist shall, at the request of City, cure the breach promptly, satisfactorily, and consistent with professional conservation standards, at no expense to City. City shall give notice to Artist of such breach with reasonable promptness. Page 6 of 24 d. If, after one year from the date of Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is curable by Artist, City shall contact Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall have the right of first refusal to make or supervise repairs or restoi•ations. Should Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. e. If, after February 6, 2011, but within one year fi•om the date of Final Acceptance, City observes any breach of war�anty described in this Section 4.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and loss incui�red by City as a result of the breach. However, if Artist disclosed the risk of this breach and City accepted that it may occur, it shall not be deemed a breach for purposes of this Section 4.2. £ Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the New Work and any associated working parts and/or equipment will maintain the New Work within an acceptable standard of public display. ii. Foreseeable exposure to the elements and general wear and tear will cause the New Work to experience only minor repairable damages and will not cause the New Work to fall below an acceptable standard of public display. iii. With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the New Work will not experience ii�eparable conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and peeling. iv. Manufacturer's Wananties. To the extent the New Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the New Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the New Wark Page 7 of 24 as Artist's creation and request that all credits be removed from the New Work and reproductions thereof until the New Work's condition is satisfactorily repaired. 4 3 Survival of Re�resentations and Warranties These representations and wai-�anties shall survive the termination or other extinction of this Agreement. ARTICLE 5 INSURANCE AND INDEMNITY 5.1. General. Artist shall carry insurance as set out in Exhibit "C." Except as provided in Section 1.2 hereof, the risk of damage to or loss of the New Work shall, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 5.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 5.3. Indemnitv. (a) ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT HIS OWN EXPENSE, CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL 1NJURY, 1NCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER K1ND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT, AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR 1N CONNECTION WITH THE EXECUTION, Page 8 of 24 PERFORMANCE, ATTEMPTED PERFORMANCE, OR NON-PERFORMANCE OF THIS AGREEMENT, AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAlNST ANY AND ALL 1NJURY, DAMAGE, AND/OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR 1N CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, HIS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, AND/OR LICENSEES. (b) ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ANY AND ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. (c) Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. (d) All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Title. Title to the New Work, including all documents, sound excerpts and/or drawings that constitute or are components of the New Work, shall pass to City upon Final Acceptance and payment for the New Work, unless a license agreement by a copyright holder prevents such action in whole or in part. These sound excerpts, documents, and/or drawings will be retained for archival and exhibition purposes. All of Artist's work products under this Agreement shall become the property of City, without restriction on future use, except as provided below or by a license agreement by a copyright holder. 6.2 Reproduction Rights. a. In view of the intention that the New Work be unique, Artist shall not make any additional exact duplicate reproductions of the New Work, nor shall Artist grant permission to others Page 9 of 24 to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist's New Work, and all other work product under this Agreement shall become property of City, without restriction on future use, except as provided below. Artist shall retain copyright, except as that right is limited by this Agreement or a license agreement, and other intellectual property rights in and to the New Work. Artist grants to City a perpetual, ii��evocable license to graphically depict or display the New Work for any non- commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the New Work intended to promote or benefit City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the New Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the New Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason, except as those rights may be limited by any license agreements. c. City shall take title to all sound excerpts, documents, and/or drawings, which constitute or are components of the New Work, upon final approval or Final Acceptance of the New Work, except as those rights may be limited license agreement copyright holders. These sound excerpts, documents, and/or drawings will be retained for archival and exhibition purposes. d. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the New Work, except as those rights are limited by this Agreement or by any license agreements. City may make and disseminate audio excerpts and accompanying materials for any municipal puipose, except as those rights may be limited by a license agreement. All reproductions by City shall contain a credit to Artist and/or the copyright holder pursuant to any license agreements. e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 ARTIST'S RIGHTS Page 10 of 24 7.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (w�ww.fwpublicart.or�) and a permanent plaque at the site. 7.2. Maintenance. City recognizes that maintenance of the New Work on a regular basis is essential to the integrity of the New Work. City shall reasonably assure that the New Work is properly maintained and protected, taking into account any maintenance instructions provided by Artist. 7.3. Re�airs and Restoration. a. City shall have the right to determine when, and if, repairs and restorations to the New Wark will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not urueasonably withhold approval for any repair or restoration of the New Work. Should Artist urueasonably withhold approval of any intended major repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such seivices. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. c. When emergency repairs are necessary to prevent the loss of or further damage to the New Work, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 7.4. Alteration of the Work or of the Site. a. In the event that the New Work is incorporated into a building, structure, or realty, the installation of the New Work may subject it to destruction, distortion, mutilation, or other modification by reason of its removal. If removal of the New Work would damage either the New Work or the Site, City shall have the right to remove the New Work by any means, including Page 11 of 24 destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. b. In the event that the New Work is freestanding, or incorporated into a building, structure, or realty such that it may be removed without damaging or destroying the New Work or the building or structure, Artist may be given written notice and ninety (90) days to remove the New Work at his sole expense. Upon Artist's failure to remove the New Work, City shall have the right to remove and dispose of the New Work by any means, including its desh-uction. c. City agrees that it will not willfully destroy, damage, or modify the New Work, except as provided in paragraphs a. and b. above. d. In the event the New Work is substantially damaged or altered, City shall no longer represent the New Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times, have the right to move the New Work, or remove it from public display. City shall also have the right to sell or trade the New Work. 7.5. Permanent Record. City shall maintain on permanent iile a record of this Agreement and of the location and disposition of the New Work. 7.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 13. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 7 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 7 7 Additional Ri�hts and Remedies. Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 8 ARTIST AS AN 1NDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to, control the details of the work performed hereunder, and all persons performing same, and Page 12 of 24 shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees, and subcontractors, and the doctrine of respondeat superiar has no application as between City and Artist. ARTICLE 9 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, audio, or visual quality of New Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including, but not limited to, its fabricator, along with a copy of the subcontract between Artist and each subcontractor. ARTICLE 10 TERMINATION 10.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by City, pursuant to this Section 10.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 10.2. Termination for Cause. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements, or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate, specifying the grounds for termination. The defaulting party shall have two (2) days after receipt of the notice to cure the default (the "Cure Period"). If the default is not cured during the Cure Period, then this Agreement shall terminate. Termination of this Agreement under this provision shall not relieve the party in Page 13 of 24 default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 10.3. Termination for Convenience. a. The services to be performed under this Agreement may be tet-minated by either party, subject to written notice submitted iive (5) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of City, Ai-tist shall have the right to fees for work performed, in which event City shall have the right at its discretion to possession and transfer of title to the audio recordings, sound excerpts, sketches, designs, original proposal paintings ar illustrations, fabrication samples, and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the date of termination with all right granted to City in Article 6, but provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist pursuant to this Agreement prior to termination. 10.4. Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed priar to death or incapacity. All finished and unf'inished drawings, sketches, photographs, models, and work shall become property of City. b. Should Artist's design have been approved or if Artist's work has progressed to the point of fabrication of the New Work, in the event of termination under this Section 10.4, City shall have the right to complete the New Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 11 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, ar gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, Page 14 of 24 race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including, but not limited to, apprenticeship. Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause. b. Artist shall, in all solicitation or advertisements for employment placed on or on behalf of Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. c. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of Artist's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Artist shall comply with Federal, State, and City statutes, ordinances and regulations applicable to the perfoi�rnance of Artist's services under this Agreement. 12.2. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 12.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 12.4. Waiver. Page 15 of 24 No waiver of performance by either• party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 12.5 Governin� Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 12.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 12.7. No Third-Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successar or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. Severabilitv. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 12.9. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.10. Fiscal Funding Out• If, for any reason at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City Page 16 of24 to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 12.11. Ca�tions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 12.13. Survivin�Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Ai-tist. 12.14. Ri�ht to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, Artist shall make all Records available to City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this Section 12.14 shall survive expiration or earlier termination of this Agreement. 12.15. Certified M/WBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise ("M/WBE") firm with a certifying agency whose certification is accepted by City under City's M/WBE ordinance. 12.16 Survival Provision The provisions contained in Articles 4, 5, 7, and 8 shall survive the termination or expiration of this Agreement. 12.17 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Artist's Proprietary Information to Page 17 of 24 third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any un- authorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any infoimation deemed proprietary by Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. ARTICLE 13 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: City Attorney City of Fort Worth Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Vice President — Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 2. ARTIST: Christopher Janney, President PhenomenArts, Inc. Page 18 of 24 75 Kendall Road Lexington, MA 02421 US [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Page 19 of 24 IN WITNESS WHEREOF, the parties hereto have executed four copies af this Agreement to be effective on the Effective Date. CITY OF FORT WORTH ARTIST PhenomeArts, Inc. By: G�i�t...lo L./s� ��- . ,��� Fernando Costa Christopher Janney Assistant City Manager President APPROVED AS TO FORM AND LEGALTTY: ----� � �� _ �"C-% Tyler F. ach Assistant City Attorney ATTESTED BY: Marty Hendrix City Secretary �.� ,_� �. _-� �I� �d�� .����)���;�+ P — -.���__--_._�_-.�s-_r��_� OFFICIAL RECORD �I�'� �����.�-�i ���:�"�' �, ��tJ� g�} Yt:y�' �� � p r�' '!'"�p �jf�l'_79.. I{ �!'�. " EXHIBIT A: Af�davit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractars, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of 201 Notary Public, State of Texas Print Name Commission Expires Page 21 of 24 EXHIBIT B: Sales Tax Exemption T�XAS CERTII+iCATE OF EI�DTPTION I claim an exemption &om paymeut of sales aud use ta�ces for the purehase of taacable items desccibed below ot on the attached order or iuvoice. Desciiption of Items (oi au attached ozdei or invoice)1'o Be I'mchased: All Items I claim this exemption foi the following ieason: Name of exempt organization: Citv of I�oit ��Voith Texas Sales aud Use Tax Pernut Number 1-75-6000528-6 Project for �3�iuch mateiials and supplics aze puichased: I understand that I will be liable for pa}went o:f sales taac, which may become due for failuie to comply with tlie provisions of the state, city, and/ar mchopolitan h�u�sit authozity sales and use tax laws and compt�ollcr iules regatding exempt �urchases. LiaUility foi tlte tax will be detetmined by the ptice paid for the t�ablc items ptuchased or the fair market rental value foc the peiiod of tune used I undeistan<i (hat it is a misdevxeanor to give au exemption ccttificatc to the seller £ot taxable itcros �vhiclx I know, at the tvne of the purchase, will Ue uscd ui a manner other thau that cxpcnscd in this certificate aud, upon conviction, may Ue fined up to $500 per offense Tax Exempt $tatus Due to Beiug a Govetnmental Entity Pwchasei: Cily of Port Worth Street Addiess: 1000 Thzockmortou Sheet City, State, Zip Code: Fort Worth, Texas 76102 Sign Here: �ro, �"/!?9^ � Date: 02/07/2007 Phone: f 81'7) 392-8325 11f c Gny-Russi, A sGot Ninanee irector Tlus certificate does xiot rcquue 1 number lo be valid Sales and use tax "exemption numbers" or "ta�c cxempY' numbe.rs do no[ exist. T'his cettificate should be fiunished to tl�e suppliet. Do not send the completed ceitificate to fhe Comptrollax of PuU1ic Accounts_ Page 22 of 24 EXHIBIT C: Insurance PUBLIC ART PROJECTS -1NSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project, naming City as an additional insured on each policy of insurance, except Workers Compensation. If the Artist subcontracts fabrication, transportation, and/or installation of the New Work, then the Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. The Artist shall require the subcontractor(s) to name the Artist and the City as additional insureds. Commercial General Liability (CGL) $1,000,000 Each occui�ence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractars, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name the City as an additional insured. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," deiined as autos owned, hired and non-owned. For the Artist and/or the Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS Thirty (30) days notice of cancellation or non-renewal. Page 23 of 24 Example: "This insurance shall not be cancelled or non-renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth, except for ten (10) days notice for non- payment of premium. Waiver of i�ights of recovery (subrogation) in favor of the City of Fort Woi-th. The insurers for all policies must be licensed/approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella ar Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." (If coverage is written on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage.) The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by the City's Risk Manager. The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety days. The City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Page 24 of 24